CCT10/05

2006 (1) SA 524 (CC)

2006 (3) BCLR 355 (CC)

Sachs J Majority judgment

O'Regan J separate judgment

1 December 2005

http://hdl.handle.net/20.500.12144/2249

Case CCT60-04 Minister of Home Affairs and Another v Fourie and Another was first heard in the Pretoria High Court : Fourie and Another v Minister of Home Affairs and Another (The Lesbian and Gay Equality Project intervening as Amicus Curiae) Case 17280/02, 18 October 2002, Unreported. Applicants approached the Constitutional Court for leave to appeal directly to it against the judgment and order of the Pretoria High Court. This Court refused the application on the grounds that the interests of justice required that the appeal first be heard by the Supreme Court of Appeal: Fourie and Another v Minister of Home Affairs and Another 2003 (5) SA 301 (CC) ; 2003 (10) BCLR 1092 (CC). Applicants then appealed to the SCA: Fourie and Another v Minister of Home Affairs and Others 2005 (3) SA 429 (SCA) ; 2005 (3) BCLR 241 (SCA). Applicants now appeal against the judgment of the Supreme Court of Appeal while the respondents seek leave to cross-appeal against the Supreme Court of Appeal judgment. Case CCT10-05 (Lesbian and Gay Equality Project and Eighteen Others v Minister of Home Affairs and Others: the applicants apply to the Constitutional Court for direct access to enable their challenge to be heard together with the appeal and cross-appeal relating to the Supreme Court of Appeal judgment in the Fourie case

The Fourie matter was an application for leave to appeal against a judgment of the SCA. The respondents in that matter launched a cross-appeal against aspects of the SCA judgment. The Lesbian and Gay Equality Project (LGEP) matter was an application for direct access. The Fourie matter concerned the common-law definition of marriage, which prohibited marriage between members of the same sex. The LGEP matter was a challenge to the constitutionality of sections of the Marriage Act 25 of 1961. The applicant in that matter argued that the marriage formula to be repeated by a couple to be married discriminated unconstitutionally against homosexual persons. The Court was unanimous on all matters except the remedy. It held that both the Marriage Act and the common-law definition of marriage were unconstitutional to the extent that they discriminated against homosexual couples. The majority, as per Sachs J, held that a legislative remedy would render the development of the common law unnecessary. Holding that Parliament is properly placed to find the best remedy, the order of invalidity was suspended for twelve months in order to give Parliament time to remedy the defect. If Parliament failed to cure the defect within that time, the words "or spouse" would automatically be read into the relevant section of the Marriage Act. O'Regan J agreed with the finding of unconstitutionality, but held that this Court should develop the common law and at the same time read in words to section 30 (1) of the Act, permitting same sex couples to marry with immediate effect.